Thursday, June 04, 2009

Abdelrazik: stunning setback for the Harper regime

Federal appeal court judge Russel Zinn, in a landmark ruling, has ordered the Harper government to repatriate the exiled Abousfian Abdelrazik within thirty days. And, in an unusual move, he has remained seized of the case. If a ticket has not been arranged for Abdelrazik in fifteen days, said Zinn, he may drag the government before him to explain why.

The judge did not mince words:

“Mr. Abdelrazik's Charter right to enter Canada has been breached by the respondents... Mr. Abdelrazik is entitled to an appropriate remedy which, in the unique circumstances of his situation, requires that the Canadian government take immediate action so that Mr. Abdelrazik is returned to Canada.''

The judge said that keeping Mr. Abdelrazik in forced exiled means he is “as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists.''

Will the outrageous antics of the Harper government stop here--or will it pursue its vendetta against this dark-skinned Canadian by seeking leave to appeal to the Supreme Court?

Well, whatever Harper and his ministers eventually decide in their dank little burrows, I--and countless other Canadians, including, I expect, Abdelrazik himself, and his long-suffering family--will be celebrating tonight. This ruling, the no-nonsense clarity of which I did not dare to expect, was a major blow struck for civil liberties, the rule of law, and Canadian values of decency and fairness. Zinn's hard-hitting decision makes me proud beyond measure at this point to be Abdelrazik's fellow citizen.

UPDATE: A clear, uncompromising, straight to the point and frequently witty judgement. Some excerpts:

There is no direct evidence before this Court that Mr. Abdelrazik supports, financially or otherwise, is a member of, or follows the principles of Al-Qaida. There is no evidence before this Court as to the basis on which the United States authorities concluded that Mr. Abdelrazik has provided support to Al-Qaida and poses a threat to the security of the United States of America. There is no evidence before this Court nor, as shall be discussed later, that is currently available to Mr. Abdelrazik as to the basis on which the 1267 Committee listed him as an associate of Al-Qaida. The only direct evidence before this Court is in an affidavit filed by Mr. Abdelrazik in which he swears that he has no connection to Al-Qaida. (11)

Counsel for the applicant met with officials from Foreign Affairs on February 27, 2008, to discuss his client’s situation. In a letter dated April 18, 2008, the Director of Consular Case Management for Foreign Affairs wrote as follows:

With respect to Mr. Abdelrazik’s passport application, I would like
to remind you of our commitment, expressed in our meeting of
February 27, to ensure that he has an emergency travel document to
facilitate his return to Canada. We stand by that commitment.
(emphasis added)

Passport Canada falls under the jurisdiction of the Minister of Foreign Affairs. (13)

I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness. Unlike the first Canadian security certificate scheme that was rejected by the Supreme Court in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9; [2007] 1 S.C.R. 350, the 1267 Committee listing and de-listing processes do not even include a limited right to a hearing. It can hardly be said that the 1267 Committee process meets the requirement of independence and impartiality when, as appears may be the case involving Mr. Abdelrazik, the nation requesting the listing is one of the members of the body that decides whether to list or, equally as important, to de-list a person. The accuser is also the judge.(22)

It is difficult to see what information any petitioner could provide to prove a negative, i.e. to prove that he or she is not associated with Al-Qaida. One cannot prove that fairies and goblins do not exist any more than Mr. Abdelrazik or any other person can prove that they are not an Al-Qaida associate. It is a fundamental principle of Canadian and international justice that the accused does not have the burden of proving his innocence, the accuser has the burden of proving guilt. In light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court. The 1267 Committee regime is, as I observed at the hearing, a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime. (23-24)

I pause to comment that it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion. (24)

An allegation that Canada was complicit in a foreign nation detaining a Canadian citizen is very serious, particularly when no charges are pending against him and in circumstances where he had previously fled that country as a Convention refugee. However, in my view, the evidence before the Court establishes, on the balance of probabilities, that the recommendation for the detention of Mr. Abdelrazik by Sudan came either directly or indirectly from CSIS. I find, on the balance of probabilities, on the record before the Court, that CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese.(38)

The applicant relies on a statement contained in Case Note 123 dated July 30, 2004, authored by Ms. Gaudet-Fee of Foreign Affairs in Ottawa as evidence of the “attitude” of Foreign Affairs and, he submits, it proves that there was never any real intention to have him returned to Canada. The impugned statement is as follows:

So, should she get a private plane, there is very little we could do to
stop him from entering Canada. He would need an EP [i.e.
Emergency Passport] and I guess this could be refused but on what
So, stay tuned. (43)

Although no emergency passport was asked for, as the private flight failed to materialize, I find the comment of the official of Foreign Affairs very troubling. I find the respondents’ explanation less than convincing. Admittedly the statement was made shortly after Foreign Affairs found out about the no-fly listing and also learned, for the first time it appears, that Mr. Abdelrazik was alleged to have connections to Al-Qaida. Neither fact explains why a Canadian official of foreign Affairs would be musing about refusing Mr. Abdelrazik an emergency passport. (44)

The applicant submits that he had previously been told by Canadian officials that an emergency passport would issue if he secured an itinerary but that following this potential flight, the respondents changed the goal-posts, requiring him to have a paid itinerary before an emergency passport would issue.

There is support for this submission.The word “paid” is added to the assurances from Canadian officials only after this event. The first such reference is in a letter to applicant’s counsel dated December 23, 2008 from the Director General Security Bureau, Passport Canada....

It was Canada’s view that it was illegal under the 1822 Resolution and the laws of Canada to financially assist Mr. Abdelrazik. Canada was also aware that he was impecunious. It is not unreasonable to suggest, as the applicant did, that in adding the condition that the itinerary be a paid one, Canada was ensuring that it would not be called upon to provide the emergency passport. The applicant submits that this added condition is further evidence that Canada never intended to permit him to return to Canada. The weight of the evidence supports that submission. (49)

[T]he respondents’ interpretation of the 1267 travel ban leads to a nonsensical result. According to their interpretation, the Resolution permits a citizen to enter Canada if and only if he happens to be standing at the Canadian border crossing, but it prevents that same citizen from reaching that border crossing as he cannot transit over land or through air to reach it. On the respondents’ interpretation the exemption that provides that no State is obliged to prevent its citizens from entry becomes meaningless as there is virtually no possibility that a listed person will be located at a border crossing and there is no possibility under current technology that he will be
able to simply transport himself to the border crossing without transiting over land or through the air. Quite simply that could not have been the intention of the drafters of the Resolution. (52)

In my view, the submission that the applicant had not been denied entry into Canada by the Government of Canada was not accurate when made 6 days after the Minister had denied the applicant an emergency passport. Whether or not the Etihad Airways flight scheduled for April 3, 2009 would breach the travel ban set out in the 1822 Resolution, there is no evidence before the Court that had Mr. Abdelrazik been in possession of an emergency passport issued by Canada that he would not have been on that flight and now in Canada. I find that the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister on April 3, 2009. (62)

In my view, where a citizen is outside Canada, the Government of Canada has a positive obligation to issue an emergency passport to that citizen to permit him or her to enter Canada; otherwise, the right guaranteed by the Government of Canada in subsection 6(1) of the Charter is illusory. Where the Government refuses to issue that emergency passport, it is a prima facie breach of the citizen’s Charter rights unless the Government justifies its
refusal pursuant to section 1 of the Charter. (64)

I find that the applicant’s Charter right as a citizen of Canada to enter Canada has been breached by the respondents in failing to issue him an emergency passport. In my view, it is not necessary to decide whether that breach was done in bad faith; a breach, whether made in bad faith or good faith remains a breach and absent justification under section 1 of the Charter, the aggrieved party is entitled to a remedy. Had it been necessary to determine whether the breach was done in bad faith, I would have had no hesitation making that finding on the basis of the record before me. (64-5)

It is simply not sufficient for the Minister to say that he has reached this opinion and “trust me” – he must show more; he must establish that it was “required”. While it is not the function of the judiciary to second guess or to substitute its opinion for that of the Minister, when no basis is provided for the opinion, the Court cannot find that the refusal was required and justified given the significant breach of the Charter that refusing a passport to a Canadian citizen entails. In this case, the refusal of the emergency passport effectively leaves Mr. Abdelrazik as a prisoner in a foreign land, consigned to live the remainder of his life in the Canadian Embassy or leave and risk detention and torture. (67)

I have found that Canada has engaged in a course of conduct and specific acts that constitute a breach of Mr. Abdelrazik’s right to enter Canada. Specifically, I find:

(i) That CSIS was complicit in the detention of Mr. Abdelrazik by the Sudanese authorities in 2003;
(ii) That by mid 2004 Canadian authorities had determined that they would not take any active steps to assist Mr. Abdelrazik to return to Canada and, in spite of its numerous assurances to the contrary, would consider refusing him an emergency passport if that was required in order to ensure that he could not return to Canada;
(iii) That there is no impediment from the UN Resolution to Mr. Abdelrazik being repatriated to Canada – no permission of a foreign government is required to transit through its airspace – and the respondents’ assertion to the contrary is a part of the conduct engaged in to ensure that Mr. Abdelrazik could not return to Canada; and
(iv) That Canada’s denial of an emergency passport on April 3, 2009, after all of the preconditions for the issuance of an emergency passport previously set by Canada had been met, is a breach of his Charter right to enter Canada, and it has not been shown to be saved under section 1 of the Charter. (68)

I agree with the respondents that a Court should not go further than required when fashioning a remedy for a Charter breach: Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3. In this case, the applicant is entitled to be put back to the place he would have been but for the breach – in Montreal. (68)

It is further required, in the Court’s judgment that the Court satisfy itself that Mr. Abdelrazik has in fact returned to Canada. Accordingly, in fulfilment of this judicial process, the Court requires that Mr. Abdelrazik attend before it at the time and date specified in the Judgment. (71) [specified later in the judgement as July 7]

There are mere smackdowns--and then there are judgements like Justice Russel Zinn's. Truly a thing of beauty.

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